Smt. Usha Tibrewal, Kolkata V. ITO, Ward-30(4), Kolkata, Kolkata

ITA 1027/KOL/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 74959 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 5 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-01-2014
• Appeal Filed By: Assessee
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 10-07-2012
• Court: TRIBUNAL
• Department Lawyers: S P LAHIRI LD CITSR
• Assessee Lawyers: SOUMITRA CHOUDHURY LD
• Keywords: Income from undisclosed sources; Valuation report

Judgement Text

, A , INCOME TAX APPELLATE TRIBUNAL, BENCH- A KOLKATA ( ) BEFORE . . , SHRI P.K.BANSAL, ACCOUNTANT MEMBER !' /AND #$#% 1 ' , SHRI GEORGE MATHAN, JUDICIAL MEMBER '( / ITA NO.1027/KOL/2012 A.Y 2008-09 SMT. USHA TIBREWAL PAN:ABRPT 9990N - ! - - VERSUS - . I.T.O WARD 30(4), KOLKATA ( '* / APPELLANT ) ( +,'* / RESPONDENT ) '* . / FOR THE APPELLANT /SHRI SOUMITRA CHOUDHURY, ADVOCATE, LD.AR +,'* . / FOR THE RESPONDENT: / SHRI S.P. LAHIRI, LD. CIT/SR.DR /!0 1 2 /DATE OF HEARING : 06-01-2014 34 1 2 /DATE OF PRONOUNCEMENT: 08-01-2014 / ORDER #$#% 1 ' , SHRI GEORGE MATHAN, JUDICIAL MEMBER THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS)-XIV, KOLKATA IN APPEAL NO.272/CIT(A)- XIV/10-11 DATED 19-04-2012 FOR THE ASSESSMENT YEAR 2008-09. 2. SHRI SOUMITRA CHOUDHURY, ADVOCATE, LEARNED AR REPRESENTED ON BEHALF OF THE ASSESSEE. AND SHRI S.P. LAHIRI, LEARNED CIT/SR .DR REPRESENTED ON BEHALF OF THE REVENUE. 3. IN THE ASSESSEES APPEAL, THE ASSESSEE HAS RAIS ED THE FOLLOWING GROUNDS OF APPEAL:- I) FOR THAT ON THE FACTS OF THE CASE, THE ORDER PAS SED BY THE LD. CIT(A) IS COMPLETELY ARBITRARY, UNJUSTIFIED AND ILL EGAL. 2) FOR THAT ON THE FACTS OF THE CASE, THE CIT(A) WA S WRONG IN CONFIRMING AND ADDITION OF RS.27,80,000/ AS UNEXPLA INED CASH CREDIT IN THE BANK A/C. THOUGH IN THE NAME OF ASSESSEE BUT WAS ACTUALLY ITA NO.1027/KOL/2012-A SMT. USHA TIBREWAL 2 BELONGING TO HER MOTHER WHICH IS COMPLETELY ARBITRA RY, UNJUSTIFIED AND ILLEGAL. 3) FOR THAT ON THE FACTS OF THE CASE, SHOULD HAVE C ONSIDERED THE LETTER OF THE DECEASED MOTHER OF THE ASSESSEE WHERE IN SHE HAS GIVEN ALL HER STRIDHAN (JEWELLERY) TO THE ASSESSEE FOR MAKING CHARITY WHICH HAS NOT BEEN CONSIDERED BY THE LD. CIT(A), TH EREFORE, THE ORDER PASSED BY THE LD. CIT(A) IS COMPLETELY ARBITR ARY, UNJUSTIFIED AND ILLEGAL. 4) FOR THAT ON THE FACTS OF THE CASE, THE LD. CIT(A ) WAS WRONG IN NOT CONSIDERING THE VALUATION REPORT DATED 03/10/1997 O F THE ASSESSEES DECEASED MOTHER, THEREFORE, THE ORDER PASSED BY THE LD. CIT(A) IS COMPLETELY ARBITRARY, UNJUSTIFIED AND ILLEGAL. 5) FOR THAT ON THE FACTS OF THE CASE, THE LD. CIT(A ) WAS WRONG IN NOT CONSIDERING THE ASSESSEES AFFIDAVIT, THEREFORE, TH E ORDER PASSED BY THE LD. CIT(A) IS COMPLETELY ARBITRARY, UNJUSTIFIED AND ILLEGAL. 6) FOR THAT ON THE FACT OF THE CASE, THE LD. CIT(A) WAS WRONG IN NOT CONSIDERING THE FACT THAT THE ASSESSEE HAS MADE CHA RITY TO RAMKRISHNA MISSION AMOUNTING TO RS. 27,80,000/ AS P ER HER MOTHERS WISH, THEREFORE, THE LD CIT(A) SHOULD HAVE DELETED THE CASH DEPOSIT IN THE BANK A/C. AMOUNT TO RS. 27,80,0 00/= WHICH IS COMPLETELY ARBITRARY, UNJUSTIFIED AND ILLEGAL. 6) FOR THAT THE APPELLANT RESERVES THE RIGHT TO ADD UCE ANY FURTHER GROUND/GROUNDS, EVIDENCE/ EVIDENCES ON HEARING OF A PPEAL. 4.. AT THE TIME OF HEARING, IT WAS SUBMITTED BY THE LEARNED AR FOR THE ASSESSEE THAT THE ISSUES IN THE APPEAL WERE SQUARELY COVERED BY THE DECISION OF THE CO-ORDINATE BENCH OF THIS TRIBUNAL IN ASSESSEES OWN CASE FOR T HE IMMEDIATELY PRECEDING ASSESSMENT YEARS BEING ASSESSMENT YEARS 2006-07 A ND 2007-08 IN ITA NOS. 1927 & 1928/KOL/2010 DATED 21-11-2013, WHEREIN THE CO-O RDINATE BENCH OF THIS TRIBUNAL HAS GIVEN A CATEGORICAL FINDING IN PARA 9 OF THE OR DER AS FOLLOWS:- FROM THE ABOVE CASE LAW OF HONBLE KERALA HIGH COU RT IN THE CASE OF K. S. KANNAN KUNHI (SUPRA), II IS CLEAR THAT IT IS NOT THE LAW THAT, WHEN ONCE THE EXPLANATION IS REJECTED, IT AUTOMATIC ALLY FOLLOWS THAT THE RECEIPTS ARE INCOME. WHETHER AN EXPLANATION IS ACCEPTABLE. AND IF NOT, WHETHER II SHOULD BE INFERRED THAT THE RECE IPTS CONSTITUTE INCOME, ARE DIFFERENT ASPECTS OF THE SAME QUESTION. BOTH THESE ASPECTS ARE INTER-RELATED, AND THE QUESTION WHETHER SUCH RECEIPTS CONSTITUTE INCOME OR NOT HAS TO BE DECIDED ON A CON SIDERATION OF ALL THE RELEVANT FACTS AND CIRCUMSTANCES OF THE CASE. IT IS QUITE LEGITIMATE IN THE CASE OF AN ASSESSEE WHO IS KNOWN TO BE CARRYING ON SEVERAL ACTIVITIES OF AN INCOME-EARNING CHARACTE R OR WHO CAN ITA NO.1027/KOL/2012-A SMT. USHA TIBREWAL 3 REASONABLY BE FOUND TO BE INVOLVED IN SUCH ACTIVITI ES, TO DRAW THE INFERENCE THAT THE AMOUNTS FOUND WITH HIM CONSTITUT E INCOME FROM UNDISCLOSED SOURCES, IN THE ABSENCE OF SATISFACTORY EXPLANATION REGARDING THEIR SOURCE. SUCH AN INFERENCE SHOULD NO T BE READILY MADE IN THE CASE OF A PERSON, WHO HAS NO KNOWN BUSI NESS OR OTHER SOURCE OF INCOME, OR WHO CANNOT EVEN BE REASONABLY SUSPECTED AS ENGAGED IN ANY INCOME-EARNING ACTIVITIES. IN THE LA TTER CASE, THERE MUST BE MORE SUBSTANTIAL REASONS TO REJECT THE ASSE SSEES EXPLANATION, AND DRAW THE INFERENCE THAT THE AMOUNT S FOUND WITH HIM CONSTITUTED INCOME. HONBLE SUPREME COURT ALSO OBSERVED THAT THE DEPARTMENTAL AUTHORITIES AND THE TRIBUNAL HAD N OT EXAMINED THE MERITS OF THE ASSESSEES CASE AND HAD ARBITRARILY R EJECTED THE EXPLANATION GIVEN BY IT. NOW, IN THE PRESENT CASE, THE ASSESSEE HAS PRODUCED ALL THE EVIDENCES AND WHICH HAVE ARBITRARILY BEEN REJECTED BY THE LOWER AUTHORITIES. IT IS ALSO A FACT THAT ASSESSEE WAS NE VER THE OWNER OF GOLD AND DIAMOND JEWELLERY INSTEAD HER MOTHER HAS H ANDED OVER THE POSESSION OF JEWELLERY FOR DOING CHARITY OUT OF THE SALE PROCEEDS OF THE SAME AND ASSESSEE ACTED ACCORDINGLY, AS CAN BE GATHERED FROM THE ABOVE FACTS AND CIRCUMSTANCES. THE ASSESSEE BEI NG ONLY A FACILITATOR FOR DOING CHARITY ON BEHALF OF HER LATE MOTHER, THE DEPOSITS MADE IN ONE BANK ACCOUNT ON ACCOUNT OF SALE OF JEWE LLERY CANNOT BE ASSESSED AS INCOME OF THE ASSESSEE. HENCE, WE REVER SE THE ORDERS OF THE LOWER AUTHORITIES AND DELETE THE ADDITION. 4.1 IT WAS THE SUBMISSION THAT THE ADDITIONS AS CON FIRMED BY THE LD.CIT(A) MAY BE DELETED. 5. IN REPLY, THE LEARNED SR.DR DREW OUR ATTENTION TO PARAS 6 AND 7 OF THE ORDER OF THE LD.CIT(A). HE HAS VEHEMENTLY SUPPORTED THE ORD ERS OF THE AO AND THE LD.CIT(A). 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. A PER USAL OF THE ORDER OF THE LD.CIT(A) MORE SPECIFICALLY IN PARA 7 OF HIS ORDER SHOWS THAT THE LD.CIT(A) HAS RELIED UPON THE DECISION/ORDER OF HIS LD. PREDECESSOR FOR THE ASSESSMENT YEARS 2006-07 AND 2007-08, WHICH HAS BEEN REVERSED BY THE CO-ORDI NATE BENCH OF THIS TRIBUNAL IN ASSESSEES OWN CASE IN ITA NOS. 1927 & 1928/KOL/201 0 FOR THE ASSESSMENT YEARS 2006-07 & 2007-08 RESPECTIVELY. IT IS FURTHER NOTI CED THAT THE FACTS FOR THE RELEVANT ASSESSMENT YEAR ARE ALSO IDENTICAL TO THE FACTS FOR THE ASSESSMENT YEARS 2006-07 & 2007-08 (REFER TO SUPRA). IN THE CIRCUMSTANCES, RE SPECTFULLY FOLLOWING THE DECISION OF THE CO-ORDINATE BENCH OF THIS TRIBUNAL IN ASSESSEE S OWN CASE FOR THE ASSESSMENT ITA NO.1027/KOL/2012-A SMT. USHA TIBREWAL 4 YEARS 2006-07 & 2007-08 (REFER TO SUPRA) AS EXTRACT ED HEREIN ABOVE, THE ORDER OF THE LD.CIT(A) ON THIS ISSUE STANDS REVERSED AND THE ADD ITIONS AS MADE BY THE AO AND AS CONFIRMED BY THE LD.CIT(A) STANDS DELETED. 7. IN THE RESULT, THE ASSESSEES APPEAL IN ITA NO . 1027/KOL/2012 FOR THE ASSESSMENT YEAR 2008-09 STANDS ALLOWED AS STATED AB OVE. 5 / 6 / 7 58 THIS ORDER IS PRONOUNCED IN OPEN COURT ON DT 8/1/2 014 SD/- SD/- ** PRADIP SPS 1 +..9 :94; / COPY OF THE ORDER FORWARDED TO: 1. . '* / THE APPELLANT : SMT. USHA TIBREWAL 14/1 HINDUST AN ROAD, KOL-29. 2 +,'* / THE RESPONDENT- I.T.O WARD 30(4) 2 GARIAHAT RO AD (S), KOL-68. 3 4. . . / THE CIT, . ( )/ THE CIT(A) 5 . !<.7 +. / DR, KOLKATA BENCH 6 . GUARD FILE . ,9 +./ TRUE COPY, // BY ORDER, 5 '# /ASSTT REGISTRAR ( . . , ) ( P.K.BANSAL , ACCOUNTANT MEMBER ) ( #$#% 1 ' , ) (GEORGE MATHAN, JUDICIAL MEMBER) ( (( ( 2 2 2 2 ) )) ) DATE 8.1.14